Ganassin v Ulan Coal Mines Limited - [2020] NSWDC 652

District Court

New South Wales

Medium Neutral Citation: Ganassin v Ulan Coal Mines Limited [2020] NSWDC 652
Hearing dates: 10-12, 15, 17 and 18 June 2020
Plaintiff’s written submissions 18 June 2020 and 25 September 2020
Defendant’s written submissions 16 June 2020 and 28 September 2020
Decision date: 27 October 2020
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
I make the following orders:-
(1) There will be a verdict and judgment in favour of the Plaintiff in an amount to be calculated.
(2) I defer entry of final orders to enable the parties to confer, check my calculations and advise of any outstanding figures, with a view to presenting proposed consent orders that accord with this judgment and any agreement as to costs within 14 days.
(3) Parties have liberty to lodge with my Associate in Chambers any agreed Consent Orders.
(4) In the event of any disagreement, the parties are to:
(a) Approach my Associate with a view to relist the matter for further argument as to proposed final orders within 14 days.
(b) Submit to my Associate within the period referred to in (4)(a) above their proposed orders, and any documents and written submissions proposed to be relied upon.

Catchwords:
WORK INJURY DAMAGES – Where Plaintiff works in a mine for the Defendant – Plaintiff encounters a fire whilst working underground in the mine and extinguishes the fire – Whether breach of statutory duty – Whether Defendant had duty of care to prevent psychological injury – Whether psychological injury was foreseeable – Whether the fire was caused as a result of the Defendant’s negligence – Whether injuries caused by the Plaintiff’s method for extinguishing the fire and failing to don self-rescuer – Whether the Defendant failed to properly and adequately train the Plaintiff – Whether the Plaintiff acted in the “agony of the moment”
DAMAGES – Whether the Plaintiff ceased work as a result of the injuries sustained – Whether the Plaintiff suffered and developed PTSD as a result of the Defendant’s negligence – Where Plaintiff has a history of depression prior to the incident – Whether injuries caused by the Plaintiff’s dealing with the insurer – Application of s 151G – Vicissitudes of life – 15% reduction for past economic loss – 20% reduction for future economic loss

Legislation Cited:
Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), s 3
Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW), clauses 9, 23, 44A, 100
Work Health and Safety (Mines) Act 2013 (NSW)
Workers Compensation Legislation Further Amendment Act 2001 (NSW), Schedule 4
Workers Compensation Act 1987 (NSW) ss 149, 151G, 151H, Schedule 6

Cases Cited:
Abdallah v Newton (1998) 28 MVR 364 at 365-366 Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121
Brighten v Trainao [2019] NSWCA 168
Brisbane Youth Service Inc v Beven [2017] QCA 211; (2017) 270 IR 304
Byrnes v Snare (1986) 4 MVR 97
Commonwealth v Mclean (1996) 41 NSWLR 389
Davies v Whitehaven Coal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWDC 652
Decision Date: 27 October 2020

CaseChat Overview and Summary

The matter before the court involved a claim for damages by the Plaintiff, Ganassin, against Ulan Coal Mines Limited, the Defendant. Ganassin, who was employed by Ulan, encountered a fire while working underground in the mine. He extinguished the fire but sustained injuries in the process. The Plaintiff sought compensation for physical injuries, psychological harm, and alleged negligence on the part of the Defendant in failing to prevent the fire and failing to adequately train him. The legal issues revolved around whether the Defendant had a duty of care to prevent the fire, whether the psychological injuries were foreseeable, and whether the injuries resulted from the Plaintiff's actions or the Defendant's negligence.

The court examined whether the Defendant breached any statutory duty and had a duty of care to prevent psychological injury, which was foreseeable due to the hazardous nature of the work environment. The court also considered whether the fire was caused by the Defendant's negligence and whether the Plaintiff's injuries were due to his actions, including failing to don a self-rescuer. The Plaintiff's conduct in the "agony of the moment" was also scrutinised. Additionally, the court addressed whether the Plaintiff's cessation of work and development of PTSD were due to the Defendant's negligence and the impact of dealing with the insurer. The application of s 151G was considered, particularly regarding the vicissitudes of life and the appropriate reductions for past and future economic loss.

After thorough consideration of the evidence and arguments presented, the court found that the Plaintiff's psychological injuries were not solely attributable to the Defendant's negligence but were also influenced by the Plaintiff's actions and pre-existing conditions. The court determined that there was a breach of duty by the Defendant but that the Plaintiff's own conduct contributed significantly to his injuries. The court also applied the relevant statutory provisions to reduce the damages awarded. The final orders, detailed in paragraph 699, included a determination of the appropriate compensation for the Plaintiff's injuries and losses, with specific reductions applied to the economic loss components.

Orders

Orders of the court

- paragraph 699

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ganassin v Ulan Coal Mines Limited [2020] NSWDC 652
Hearing dates:	10-12, 15, 17 and 18 June 2020 Plaintiff’s written submissions 18 June 2020 and 25 September 2020 Defendant’s written submissions 16 June 2020 and 28 September 2020
Decision date:	27 October 2020
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	I make the following orders:- (1) There will be a verdict and judgment in favour of the Plaintiff in an amount to be calculated. (2) I defer entry of final orders to enable the parties to confer, check my calculations and advise of any outstanding figures, with a view to presenting proposed consent orders that accord with this judgment and any agreement as to costs within 14 days. (3) Parties have liberty to lodge with my Associate in Chambers any agreed Consent Orders. (4) In the event of any disagreement, the parties are to: (a) Approach my Associate with a view to relist the matter for further argument as to proposed final orders within 14 days. (b) Submit to my Associate within the period referred to in (4)(a) above their proposed orders, and any documents and written submissions proposed to be relied upon.
Catchwords:	WORK INJURY DAMAGES – Where Plaintiff works in a mine for the Defendant – Plaintiff encounters a fire whilst working underground in the mine and extinguishes the fire – Whether breach of statutory duty – Whether Defendant had duty of care to prevent psychological injury – Whether psychological injury was foreseeable – Whether the fire was caused as a result of the Defendant’s negligence – Whether injuries caused by the Plaintiff’s method for extinguishing the fire and failing to don self-rescuer – Whether the Defendant failed to properly and adequately train the Plaintiff – Whether the Plaintiff acted in the “agony of the moment” DAMAGES – Whether the Plaintiff ceased work as a result of the injuries sustained – Whether the Plaintiff suffered and developed PTSD as a result of the Defendant’s negligence – Where Plaintiff has a history of depression prior to the incident – Whether injuries caused by the Plaintiff’s dealing with the insurer – Application of s 151G – Vicissitudes of life – 15% reduction for past economic loss – 20% reduction for future economic loss
Legislation Cited:	Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), s 3 Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW), clauses 9, 23, 44A, 100 Work Health and Safety (Mines) Act 2013 (NSW) Workers Compensation Legislation Further Amendment Act 2001 (NSW), Schedule 4 Workers Compensation Act 1987 (NSW) ss 149, 151G, 151H, Schedule 6
Cases Cited:	Abdallah v Newton (1998) 28 MVR 364 at 365-366 Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121 Brighten v Trainao [2019] NSWCA 168 Brisbane Youth Service Inc v Beven [2017] QCA 211; (2017) 270 IR 304 Byrnes v Snare (1986) 4 MVR 97 Commonwealth v Mclean (1996) 41 NSWLR 389 Davies v Whitehaven Coal…